Kasel v. Kansas, State of et al
Filing
3
MEMORANDUM AND ORDER: IT IS THEREFORE ORDERED that the Petitioner is granted twenty (20) days from the date of this Order to show cause why this matter should not be dismissed for lack of subject matter jurisdiction. Failure to file a response may result in dismissal without additional prior notice. Signed by District Judge Sam A. Crow on 6/16/17.Mailed to pro se party Seth Michael Kasel by regular mail (daw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SETH MICHAEL KASEL,
Petitioner,
v.
CASE NO.17-3077-SAC
STATE OF KANSAS,
Respondent.
MEMORANDUM AND ORDER
The case comes before the Court on petitioner Seth Michael
Kasel’s petition for writ of habeas corpus under 28 U.S.C. §
2254.
Petitioner,
a
prisoner
County Jail, proceeds pro se.
incarcerated
in
the
Sedgwick
The Court finds that it lacks
subject matter jurisdiction over this petition and further finds
the petition has been filed out of time.
Moreover, Petitioner
has failed to exhaust his state remedies and is now barred from
doing so.
Background
On
January
25,
2010,
Mr.
Kasel
pled
no
contest
to
a
violation of K.S.A. 21-3504, aggravated indecent liberties with
a child, pursuant to a plea agreement.
1
Mr. Kasel was a juvenile
when the violation occurred.
He was sentenced on January 31,
2012, to 24 months incarceration and 6 months of after care.
As
a result of his conviction, he was required to register as a sex
offender
for
5
years
pursuant
to
the
Kansas
Registration Act (“KORA”), K.S.A. 22-4901, et seq.
completed his incarceration and after care.
Offender
Petitioner
Mr. Kasel states he
failed to register for some period of time after his release
because
he
Petitioner
was
in
not
the
aware
publicly
of
his
obligation.
available
Kansas
A
search
Adult
for
Supervised
Population Electronic Repository (“KASPER”) results in a record
stating that Petitioner was sentenced to jail on February 12,
2015, for failing to register and remains in custody.
The KORA
online registry site gives an “end of registration” date of
January 19, 2019.
The undersigned takes judicial
notice of
these publicly available records.
Mr. Kasel apparently did not
appeal either of his convictions.
Petitioner filed this action
on May 4, 2017.
Rule 4 Review of Petition
Rule 4 of the Rules Governing § 2254 Cases requires the
Court to review a habeas petition upon filing and to dismiss it
“[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district
court.”
Rules
Governing
U.S.C.A. foll. § 2254.
2
§
2254
Cases,
Rule
4,
28
Petition
Petitioner states in his application that he is challenging
his 2010 conviction and 2012 sentencing.
He does not request
release from his current incarceration for failure to comply
with
the
registration
requirements.
Mr.
Kasel
requests
“a
relief of registry” (Doc. #1, p. 14), stating, “All I want is to
not have to register.”
(Doc. #1-1, p. 1).
He lists several
grounds for his petition: (1) he was a juvenile, ignorant of the
law, and not aware of the ramifications at the time he signed
the plea agreement; (2) he was “coerced” into signing the plea
agreement by his attorney; (3) he was not made aware of the duty
to register at sentencing; (4) KORA is a bill of attainder; (5)
KORA
is
punitive;
(6)
malicious
prosecution;
and
(7)
actual
innocence.
Analysis
A. Jurisdiction
This Court may not reach the merits of Mr. Kasel’s petition
because the Court lacks subject matter jurisdiction.
2254(a)
provides
that
“a
district
court
shall
Section
entertain
an
application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.”
A petitioner seeking
habeas relief must be in custody under the challenged conviction
3
or sentence at the time the application is filed.
Cook, 490 U.S. 488, 490-91 (1989).
not
available
conviction
when
for
a
Habeas relief is generally
petitioner
seeks
he
which
longer
is
no
Maleng v.
to
challenge
“in
a
prior
custody.”
See
Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001).
It appears from the record before the Court that Mr. Kasel has
completed
his
challenges
sentence
here
and
is
for
the
no
2010
longer
conviction
incarcerated
that
under
he
that
conviction.
However, a petitioner may be found to be “in custody” for
purposes
of
petitioner
the
is
habeas
not
corpus
act
physically
in
situations
incarcerated.
where
The
the
custody
requirement can be met where there is a severe restraint on a
person’s liberty imposed because of the individual’s criminal
conviction.
Hensley v. Mun. Court, 411 U.S. 345, 351 (1973).
Hence, courts have found petitioners to be “in custody” when
they are on parole or probation, or even released on their own
recognizance
pending
execution
significant
restraints
on
of
sentence,
liberty.
See
due
to
id.;
Jones
the
v.
Cunningham, 371 U.S. 236, 242-43 (1963); Olson v. Hart, 965 F.2d
940,
942-43
consequences
(10th
of
a
Cir.
1992).
conviction,
such
In
as
contrast,
inability
collateral
to
vote
or
obtain certain licenses, are not sufficient to meet the custody
requirement for a writ of habeas corpus.
4
See Maleng, 490 U.S.
at 492; Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir.
1998).
While Mr. Kasel does not specifically make the argument,
other
similarly
situated
petitioners
have
argued
that
an
offender registry requirement is a sufficient restraint on an
individual’s liberty to qualify as being “in custody.”
argument
courts,
has
been
including
uniformly
the
Tenth
rejected
by
Circuit,
the
even
federal
in
differing state registration act requirements.
Att’y
General
of
Colorado,
745
F.3d
2014)(Colorado registration statute);
1070,
the
This
circuit
face
of
See Calhoun v.
(10th
1074
Cir.
Virsnieks v. Smith, 521
F.3d 707, 720 (7th Cir. 2008)(Wisconsin registration statute);
Wilson
v.
Flaherty,
2012)(considering
Leslie
v.
Randle,
689
F.3d
332,
and
Texas
Virginia
296
F.3d
518,
335,
(4th
338-39
registration
522-23
(6th
Cir.
statutes);
Cir.
2002)(Ohio
registration statute); McNab v. Kok, 170 F.3d 1246, 1247 (9th
Cir. 1999)(Oregon statute); Henry v. Lungren, 164 F.3d 1240,
1241-42 (9th Cir. 1999)(California statute); Williamson, 151 F.3d
at 1183-84 (Washington statute).
In
Calhoun,
the
ongoing
registry
obligation
registry
relief.
law
satisfied
Tenth
the
Circuit
under
custody
considered
Colorado’s
whether
sex
requirement
for
the
offender
habeas
Mr. Calhoun pled guilty to unlawful sexual contact in
2002 and was sentenced to two years probation and required to
5
register.
His probation was terminated in 2007, and he filed a
§ 2254 petition challenging his conviction in 2012.
Calhoun,
745 F.3d at 1072.
The
court
found
that
Mr.
Calhoun
had
completed
his
sentence, and there were no conditions of his sentence that
could
subject
him
to
reincarceration
restraint on his liberty.
and
engage
in
all
or
the
court
registration
conviction
legal
activities
concluded
requirements
that
do
not
individual’s freedom.”
placed
another
He was “free to live, work, travel,
without
without approval by a government official.”
result,
that
that
are
impose
Id.
the
Id. at 1074.
Colorado
“collateral
a
limitation
severe
sex
and
As a
offender
consequences
restriction
on
of
an
The Tenth Circuit held that “the
requirement to register under state sex-offender registration
statutes does not satisfy § 2254’s condition that the petitioner
be ‘in custody’ at the time he files a habeas petition.”
Id.
The requirements under KORA do not differ materially from
those of the Colorado act considered in Calhoun.
Under KORA,
Mr. Kasel must register within three business days of coming
into any county where he resides, works or attends school.
He
must report in person to the local registry agency four times a
year.
be
He has to provide identifying and contact information and
photographed
and
fingerprinted.
K.S.A.
22-4905.
He
is
included on a public website maintained by the Kansas Bureau of
6
Investigation.
However, as in Calhoun, Mr. Kasel is “free to
live, work, travel, and engage in all legal activities without
limitation and without approval by a government official.”
Calhoun, 745 F.3d at 1074.
recently
under
found
KORA
that
is
constitution.
(Kan. 2016).
even
not
Moreover, the Kansas Supreme Court
a
lifetime
punishment
State
v.
See
registration
under
the
Peterson-Beard,
requirement
federal
377
P.3d
or
Kansas
1127,
1131
“Although the ‘in custody’ requirement may be
satisfied by restraints other than criminal punishment, . . .
the [Kansas] Supreme Court's conclusion that [KORA] is a form of
civil regulation provides additional support for our conclusion
that
the
classification,
notification
registration,
provisions
more
are
and
analogous
community
to
collateral
consequences such as the loss of the right to vote than to
severe
restraints
on
freedom
of
movement
such
as
parole.”
Leslie, 296 F.3d at 523 (internal quotation marks and citation
omitted).
Therefore, the Court finds that merely being subject
to the KORA registration requirement is a collateral consequence
of Mr. Kasel’s 2010 conviction and does not cause him to be “in
custody” for habeas purposes.
However,
that
does
not
end
the
inquiry.
The
question
raised by Mr. Kasel’s situation is whether the fact that he is
in actual, physical custody for a violation of a registration
act causes him to be “in custody” under the original conviction
7
for purposes of § 2254.
a
future
threat
of
The Tenth Circuit found in Calhoun that
incarceration
for
offenders
who
fail
to
comply with the offender registration statute is insufficient to
satisfy the custody requirement.
Calhoun, 745 F.3d at 1074.
But in Mr. Kasel’s case, we have moved beyond a mere future
threat.
Two
circuits
have
opposite
results.
In
considered
Zichko
v.
this
question
Idaho,
guilty to rape and was sentenced in 1987.
F.3d 1015, 1017 (9th Cir. 2001).
the
and
reached
petitioner
pled
Zichko v. Idaho, 247
He did not appeal.
Mr. Zichko
served his sentence, but then violated the Idaho sex offender
registration act.
He was incarcerated for that violation when
he filed his § 2254 petition in 1997 challenging the underlying
rape conviction.
Id. at 1017-18.
The court first stated that it had several times held that
merely being subject to a sex offender registry requirement does
not
satisfy
the
“in
custody”
requirement
after
the
original
conviction has expired, but then pointed out that in none of
those cases was the petitioner actually incarcerated for failing
to register.
settled”
that
Id. at 1019.
where
an
According to the court, it is “well
offender
is
in
custody
pursuant
to
another conviction that is positively and demonstrably related
to the conviction he attacks, he meets the habeas “in custody”
requirement.
Id. at 1019, quoting Carter v. Procunier, 755 F.2d
8
1126, 1129 (5th Cir. 1985).
Therefore, the Ninth Circuit found
that “a habeas petitioner is ‘in custody’ for the purposes of
challenging
an
earlier,
expired
rape
conviction,
when
he
is
incarcerated for failing to comply with a state sex offender
registration
law
because
the
earlier
rape
‘is
predicate’ to the failure to register charge.”
a
Id.
The Third Circuit reached the opposite result.
Dist.
Att’y
of
Monroe
2016)(unpublished).
Cnty.,
659
F.
App’x
necessary
Bonser v.
126
(3rd
Cir.
In Bonser, the petitioner was convicted in
2006 of unlawful contact with a minor and served his sentence.
Then, he was convicted in 2013 for failing to register as a sex
offender and was in prison at the time he filed his § 2254
petition challenging the underlying 2006 conviction.
127.
Id. at
The court cited Calhoun in support of the finding that sex
offender registration requirements are collateral consequences
of a conviction and do not rise to the level of “custody” for
habeas purposes.
The
court
requirement
is
Id. at 128.
reasoned
itself
a
that
because
collateral
the
consequence
registration
of
the
sex
offense conviction, any penalty that results from the violation
of such requirement must be a collateral consequence as well.
Id., citing Maleng, 490 U.S. at 492; Davis v. Nassau Cty., 524
F. Supp. 2d 182, 189 (E.D.N.Y. 2007)(holding that “the fact that
these collateral penalties are not merely a possibility, but
9
have actually materialized . . ., does not make them any less
collateral
and,
analysis”).
thus,
The
does
Third
not
Circuit
change
went
the
on
to
‘in
custody’
find
that
the
petitioner’s current custodial status was not a continuation of
his expired sex offense sentence but was pursuant to an entirely
separate
conviction.
Consequently,
he
was
not
“in
custody”
under the original conviction and could not obtain review of
that conviction.
Id. at 129.
The court reasoned that to decide
the opposite would “reward law-breakers, because sex offenders
who fail to register would have an additional opportunity to
challenge their underlying convictions - no matter how old while
individuals
who
abide
by
the
would forgo such an opportunity.”
registration
requirements
Id.
In a footnote, the court addressed the Zichko decision,
stating “[o]nly the Court of Appeals for the Ninth Circuit has
accepted the view that a petitioner is ‘in custody’ for the
purpose of challenging an earlier, expired rape conviction, when
he
is
incarcerated
for
failing
to
comply
with
a
state
sex
offender registration law” and pointing out that “[n]o courts
outside the Ninth Circuit have followed Zichko” and two federal
district courts had explicitly rejected it.
Id. at 129, n.4.
While the Tenth Circuit has not considered this issue, this
Court finds the Bonser case persuasive.
In his § 2254 petition,
Mr. Kasel challenges his underlying, expired conviction.
10
He
does not even mention his conviction for failing to register or
his current incarceration.
Under Supreme Court precedent, he
cannot bring a habeas action directed solely at the underlying
conviction because he is no longer serving the sentence for that
conviction.
Lackawanna, 532 U.S. at 401.
The on-going duty to register as a sex offender resulting
from the 2010
conviction is
a collateral consequence of the
conviction, not a part of the sentence.
at 1074.
See Calhoun, 745 F.3d
Therefore, that duty does not render Mr. Kasel “in
custody” for purposes of challenging the conviction through a
habeas
action.
See
id.
Petitioner’s
conviction
and
incarceration for a violation of the duty to register is also a
collateral consequence of the original conviction.
See Bonser,
659 F. App’x at 128; cf. Broomes v. Ashcroft, 358 F.3d 1251 (10th
Cir. 2004), abrogated on other grounds, Padilla v. Kentucky, 599
U.S.
356
deportation
(2010)(finding
of
lawful,
that
the
permanent
detention
residents
is
and
impending
a
collateral
consequence of their state criminal convictions and does not
cause the defendants to be “in custody” for purposes of a habeas
action challenging those expired state convictions).
This Court
does not have jurisdiction to reach the merits of Mr. Kasel’s
petition because he is not “in custody” under the conviction or
sentence he attacks.
Accord Daniels v. Jones, 2010 WL 3629835,
at *5 (D. Colo. Sept. 9, 2010).
11
B. Exhaustion
Assuming for the sake of argument that this Court does have
subject matter jurisdiction over Mr. Kasel’s claims, he faces
two more fatal flaws with his § 2254 petition that preclude
consideration of the merits.
First,
a
federal court cannot
grant a state prisoner's habeas petition unless the petitioner
has
exhausted
2254(b)(1).
his
claims
in
state
court.
See
28
U.S.C.
§
Exhaustion requires that a state prisoner give
state courts “one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established
appellate review process.”
838,
845
(1999).
exhaustion.
O'Sullivan v. Boerckel, 526 U.S.
Petitioner
bears
the
burden
of
showing
See Olson v. McKune, 9 F.3d 95, 95 (10th Cir. 1993).
Based on Mr. Kasel’s petition, it appears that he has not
pursued any type of review by the state courts.
It further
appears that Petitioner is now out of time to seek such review
under Kansas law.
procedural default.
If so, the passage of time has resulted in a
O’Sullivan, 526 U.S. at 848.
To overcome a
procedural default, Petitioner must demonstrate good cause for
the default and actual prejudice as a result of the alleged
violation
of
federal
law
that
he
seeks
to
raise
here,
or
demonstrate that the failure to consider his claims will result
in a fundamental miscarriage of justice.
Frost v. Pryor, 749
F.3d 1212, 1231 (10th Cir. 2014), citing Coleman v. Thompson, 501
12
U.S.
722,
749
(1991).
Consequently,
the
Court
directs
Petitioner to show cause why, if the Court had subject matter
jurisdiction,
this
action
should
not
be
summarily
dismissed
without prejudice for failure to exhaust his state remedies.
C. Statute of Limitations
The final problem with Mr. Kasel’s petition is that it is
not timely.
corpus
The statute of limitations for filing a habeas
petition
under
§
2254
is
set
forth
in
28
U.S.C.
§
2244(d)(1), as follows:
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.
The “limitation period shall run from” the “latest of” four
dates:
(A) the date on which the judgment became final
by the conclusion of direct review or the expiration
of the time for seeking such review;
(B) the date on which the impediment to filing
application created by State action in violation
the Constitution or laws of the United States
removed, if the applicant was prevented from filing
such State action;
an
of
is
by
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due diligence.
13
28 U.S.C. § 2244(d)(1).
The statute further provides for tolling of the statute of
limitations
during
the
pendency
of
any
“properly
filed
application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim.”
28 U.S.C. §
2244(d)(2).
The allegations contained in Mr. Kasel’s petition do not
support the use of any date later than the date petitioner’s
sentence became final for calculating the limitation period.
appears Petitioner
was sentenced on
January 31, 2012.
It
That
sentence became final on February 10, 2012, with the expiration
of the time for seeking direct review (10 days).
3608.
The
one-year
limitation
period
for
See K.S.A. 22-
filing
a
§
2254
petition began to run on February 10, 2012, and because Mr.
Kasel
did
not
appeal
his
conviction,
there
is
no
basis
for
statutory tolling under § 2244(d)(2).
Petitioner filed this action on May 4, 2017, more than five
years after his sentence became final, well beyond the one year
limitation period.
Petitioner’s § 2254 petition is untimely and
is subject to dismissal.
However, under very limited circumstances, the limitation
period may be equitably tolled.
See id.
Equitable tolling is
available only “when an inmate diligently pursues his claims and
14
demonstrates
that
the
failure
to
timely
file
extraordinary circumstances beyond his control.”
Petitioner
presents
what
could
be
an
was
caused
by
Id.
argument
for
the
application of equitable tolling in his petition, stating he was
ignorant of the law and not aware of any time limits.
pp. 11, 13).
(Doc. #1,
The Court advises Petitioner that “ignorance of
the law, even for an incarcerated pro se petitioner, generally
does not excuse prompt filing.”
1220
(10th
diligently
Cir.
2000)(citation
pursued
circumstances
Marsh v. Soares, 223 F.3d 1217,
his
beyond
omitted).
claims
his
or
alleged
control
that
Petitioner
any
has
not
extraordinary
would
justify
the
application of equitable tolling.
Although the Court currently sees no basis for equitable
tolling, Petitioner will be allowed an opportunity to present
any additional grounds before his application is dismissed.
IT IS THEREFORE ORDERED that Petitioner is granted twenty
(20) days from the date of this Order to show cause why this
matter
should
not
be
dismissed
for
lack
of
subject
matter
jurisdiction and as barred by the exhaustion requirement and the
limitation period.
The failure to file a response may result in
the dismissal of this matter without additional prior notice.
15
IT IS SO ORDERED.
DATED:
This 16th day of June, 2017, at Topeka, Kansas.
s/ Sam A. Crow______
SAM A. CROW
U.S. Senior District Judge
16
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